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Court of Criminal Appeal 7 October 2022

O’Connell v R

[2022] NSWCCA 213

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT VICTIM THREE YEARS OLD APPEALS

Citation: O'Connell v R [2022] NSWCCA 213
Court: Court of Criminal Appeal, New South Wales
Date: 7 October 2022
Judge(s): Ward P, Mitchelmore JA, Lonergan J

Background

Following a five-day trial in the District Court of NSW, a jury convicted the applicant of two counts: sexual intercourse with a child under 10 years (s 66A, Crimes Act 1900 (NSW)) and aggravated indecent assault (s 61M(2), Crimes Act). The victim was three years old at the time of the offences. The applicant had babysat the child on a number of occasions and the child did not give evidence at trial.

The Crown's case rested on circumstantial and indirect evidence. Two witnesses, the applicant's husband (Mr O'Connell) and a man with whom she had formed a relationship (Mr Crews), each gave evidence about videos sent or shown to them by the applicant. Mr Crews described two videos he had received on his phone and subsequently deleted: one depicting a finger stroking a young girl's vulva, and another showing a woman he identified as the applicant performing oral sex on a young girl. Mr O'Connell gave evidence of a similar video that the applicant showed him after returning from babysitting, and said the applicant had told him it was her stroking the child.

The Crown also relied on extensive WhatsApp and SMS exchanges between the applicant and Mr Crews, which included explicit descriptions of sexual acts the applicant claimed to have performed on the child. The Crown tendered these messages as admissions and as tendency evidence of her sexual interest in the child. The applicant gave evidence at trial, contending that the video depicting oral sex showed a woman performing the act on a doll, and that the WhatsApp messages were fabrications she composed to satisfy Mr Crews's sexual interest in children.

  • Whether the jury's verdicts on both counts were unreasonable and could not be supported by the evidence, within the meaning established in M v The Queen (1994) and affirmed in Pell v The Queen (2020)
  • Whether an extension of time to file the application for leave to appeal should be granted
  • Whether, on the whole of the evidence considered for both sufficiency and quality, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt

Decision

The Court granted the applicant an extension of time to file her appeal application and granted leave to appeal, but unanimously dismissed the appeal. Mitchelmore JA delivered the principal judgment, with Ward P and Lonergan J each conducting their own independent assessments of the evidence and agreeing with her Honour's conclusions and proposed orders.

On the reliability and weight of the witness evidence, Mitchelmore JA found it was open to the jury to accept Mr O'Connell's account of what he was shown and what the applicant said to him. The striking similarity between Mr O'Connell's description of the video and Mr Crews's independent account provided corroboration. The applicant's argued inconsistencies between the two witnesses' accounts did not, in the Court's assessment, diminish the probative force of their combined evidence.

The WhatsApp messages were treated as particularly powerful evidence. They referred explicitly to the sending of videos, contained what the Crown characterised as admissions to the offending conduct, and demonstrated a strong sexual interest in the child. The Court found it was well open to the jury to reject the applicant's explanation that the messages were fabricated to please Mr Crews, given the volume, content, and detail of the exchanges. The applicant's account was also found to be internally inconsistent.

The Court acknowledged there was no direct evidence of the acts constituting the offences and no complaint evidence from the child. Nonetheless, applying the test in Pell and related authorities, the Court was satisfied that the circumstantial evidence, taken as a whole, was sufficient in both nature and quality to support the jury's verdicts. It was not the case that the jury must have entertained a doubt about the applicant's guilt.

Orders Made

  • Leave granted to the applicant to file the Notice of Appeal after the expiry of the filing period
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a conviction based entirely on circumstantial and indirect evidence can survive an unreasonable verdict challenge where the evidence, assessed for both sufficiency and quality, eliminates any reasonable doubt.
  • The applicable test, drawn from M v The Queen, SKA v R, Libke v R, and Pell v The Queen, requires the appellate court to assess whether it was open to the jury to be satisfied beyond reasonable doubt, or alternatively whether the jury must (not merely might) have entertained a doubt as to guilt.
  • Corroboration between two independent witnesses who gave strikingly similar accounts of deleted video footage was treated as capable of supporting guilty verdicts, even though neither the offender nor the victim was identifiable from the footage itself.
  • Extensive messaging exchanges containing what amounted to admissions of the charged conduct, combined with a jury's rejection of the accused's explanation for those messages, can form a powerful evidential foundation for conviction.
  • Absence of complaint evidence from a child victim did not materially weaken an otherwise strong circumstantial case, where multiple other strands of evidence were available and accepted by the jury.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), s 191
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(1)(b) and (5)

Cases:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
- SKA v R (2011) 243 CLR 400; [2011] HCA 13
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- AJ v R [2022] NSWCCA 136